Public Bill Committee

[Ann Winterton in the Chair]

Clause 24

Children and young people

Question proposed [this day], That the clause stand part of the Bill.

Question again proposed.

Ann Winterton: I remind the Committee that with this we are considering new clause 23—Minors—
‘(1) After section 38 of the 1983 Act insert—
“38A Hospital and guardianship orders (minors)
In the case of an offender who has not attained the age of 18 years the court shall not make an order under sections 35 (remand to hospital for report), 36 (remand to hospital for treatment), 37 (hospital and guardianship orders) or 38 (interim hospital orders) unless satisfied that the services and accommodation to be provided are sufficient for the particular needs of that offender.”’.

Angela Browning: I am delighted to see you in the Chair again, Lady Winterton.
I shall reiterate my points quickly for the benefit of hon. Members who may not have heard me. I was talking about the Minister’s concern about unintended consequences in respect of the addition to clause 24 and I mentioned briefly before we broke for lunch the report by a former member of the Mental Health Act Commission, Penny Stafford, who spoke about the research that she undertook in respect of children and adolescents and in particular—I am sure that we will come to this at a different stage—the impact on children and adolescents of section 136 of the Mental Health Act 1983. She pointed out that, far from them having the opportunity to be taken to a place of safety within a hospital with appropriate services and specialisms for children and adolescents, all too often they are left to languish in police custody suites.
I put that to the Minister because she has, from time to time during our discussion of the clause, suggested that if the Government legislate, it will be for others to have to implement that legislation, with the resource implications that that may involve—in this case, we are talking particularly about children’s and adolescent services. There is a precedent for this. In fact, there are many precedents in the way the Government have legislated elsewhere on behalf of children.
Let us consider, for example, children’s services supplied through local authorities. There is a statutory obligation on a local authority. The Government do not say, “You will do this if you can afford it” or “when resources permit.” For children’s services in the main, when a local authority looks at its annual budget it has a statutory obligation to protect children, as defined by national legislation.
I therefore find it rather incongruous that the Government are prepared to legislate for the protection of children in one area, but when it comes to children and adolescents in the mental health system, a different set of values or rules applies. That is not just inconsistent; it is unacceptable. We all know that throughout mental health services—indeed, the whole area of mental health—there is stigma. There is the old clichÃ(c) that it is seen as the Cinderella service. I am sure that all of us who take an interest in the subject recognise such descriptions, but we are now talking about children and adolescents in that system. It would be invidious to choose one group of people over another, but if we cannot, through our legislation nationally, protect children, we fail—we fail as politicians and we fail as legislators.
I therefore return to the point that I made to the Minister at the beginning of the debate. If there is one aspect of the Bill that she feels she might be able to come to an accommodation on in terms of the Lords amendments, given the overwhelming evidence of the need for us to do something different in this Bill compared with the original 1983 Act, it is surely the aspect that deals with the provision of services for children and adolescents.
I will stop speaking shortly, much to the relief of the hon. Member for Rhondda, who is hanging on my every word as usual, but first I will say this. This is a very serious subject, on which we would all like to see some progress. I must ask the Minister, in considering the issue—I am sure that she will consider it—to take a look at the evidence before her and the legal counsel provided by YoungMinds and to return to the issue on Report. I am sure that she can make a difference to the improvement of services for children and adolescents in respect of mental health—indeed, she has a duty to do so.

Tim Boswell: I am deeply impressed and moved by the eloquence of my hon. Friend. The debate has gone on for some time and I do not intend to prolong it, but as someone who normally tries to seek a degree of accommodation and consensus—and may even be criticised for that from time to time—I am encouraged that matters seem at least to be working towards a common position, even if one has not yet been reached. That is true with respect to the central importance of doing something for children’s mental health services, and even with respect to the Minister’s assurance, from which we take some comfort, that, as she snatches away the provision before the Committee, she has made a commitment—although not a precise one in legislative terms—to reflect again before Report. I have a profound hope that she will do that, and come up with something practical to meet the needs that hon. Members on both sides of the Committee, including the hon. Member for Stafford, have described. We need to move on the issue.
Not only have Committee members received representations from YoungMinds and others but they will almost all have been involved in constituency cases. I have not had much experience of the kind, but an example that occurred this year has been very much on my mind. It brings together three points. The first is the importance of education as well as the health services in the support required for what the clauses define as the needs of young people. The young person in question is doing his GCSEs this year. He has suffered severe and acute depression, and difficulties have been encountered about where to accommodate him, including the question of putting him in adult mental health wards. There has been a fight for better provision, which has now been secured, but it has not been easy. A consequence has been the breaking of the link with his county, which has supported him for education purposes, because he has now crossed the boundary into another county.
The second point to make in that context, which has not been brought up so far, but which I think is a subset of the point already discussed by my hon. Friend the Member for East Worthing and Shoreham, is the remote provision of services. They may not be available readily and reliably in each of our local authority areas. That is not unusual in my constituency because of the geography, but people are going outside their area for services and having to deal with different local authorities and primary care trusts. That becomes difficult and stressful at a stressful time.
My third point has not really been made except in the context of carers, and that is the stress that such situations bring on the whole family: the parents and of course the siblings. There was a sibling in the case that I have recalled. Those people see the illness of their close relative and the desperate fight to get appropriate provision at a reasonably convenient point.

Brian Iddon: Some Labour Members remain reticent, but does the hon. Gentleman accept that there is not much difference between his side of the Committee and this side as far as acceptance of the basic principle that children should be much better looked after by the mental health services than has hitherto happened? Does he also accept that the Minister has already promised more than once to go back to YoungMinds, examine the clause, and table a more acceptable one on Report? That is why we remain reticent on the Labour Benches. I believe that the Minister will do that.

Tim Boswell: I am grateful for the hon. Gentleman’s intervention. I agree with him about the common commitment, in principle, of the Committee. I have no doubt about that or about the fact that there is a genuine wish to enact that commitment in a suitable and viable form. We have not yet quite got from the Minister an absolute assurance that that will be achieved in the Bill. The purpose of the interventions, as much as anything else, because we all feel strongly about this subject, is to reinforce the Minister’s will to try to seek a common solution. If she does so, none of my colleagues, to my knowledge, would want to claim any particular credit. It would be a victory for our discussions and our commitment.
 The only other point that I wish to make in response to the hon. Gentleman on the general importance of the topic is that this debate comes on the back of a widespread national debate on the importance of mental health services. That is why the fact that there is a cadre of members of the Committee who are committed to pursuing the matter properly is encouraging.
I shall briefly make some other points. It is important that we do not confine our attention to under-16s. The Minister has not done that, although once or twice in her presentation she began to do so. Such figures as we have and the rate of pick-up of the undertakings given by her colleague, which will now be transmitted through regional strategic health authorities to primary care trusts to be monitored and reported back, would suggest a fairly slow rate of progress, even on under-16s. Even if the rate is secured to the 99 per cent. or better confidence limit for which we hope, it will leave a problem for adolescent mental health in the 16 to 18 age group. That is of great importance, not least because that group is likely to be the better part of the population or, to put it another way, the age group in which mental health problems tend to present themselves.
I would like to associate myself with the comments made by my hon. Friends on offenders in relation to proposed new clause 23. In my constituency, there is a secure training centre and, adjacent to that, a young offenders institution, which neatly spans the 16-year-old divide. Sadly, I am only too well aware of the risks of self-harm and suicide in those establishments. It is important that there is an appropriate setting and that that is maintained when people have to leave such establishments for more intensive treatment.
As the hon. Member for Bolton, South-East rightly said, we are close to, or are edging toward, consensus. It is important that those on the Government’s side do not caricature what we are saying in new clause 23, and that we do not pretend that there are no difficulties. We need to get it right. It has already been made clear to the Committee—if not, it is clear to me—that there is no question of diverting people’s attention; emergencies override, although somebody will have to deal with them. However, we are anxious that an emergency situation does not slide effortlessly into a kind of prescription for the duration that is not appropriate for the young person involved.
My next point is that there is nothing to stop treatment for a young person being administered in an adult ward when that is appropriate. There is no text to suggest otherwise in the clause as it appears. The measure is about giving treatment wherever it is most appropriate for the young person in question. There may be times, for example when there is a condition that requires expertise or a group or peer group. It might be sensible for treatment for a young person to be given in adult provision, but that should at least be run past a judgment and not assumed.
 That brings us to the question of resources, which I am sure is a motivator of the Minister’s reticence, and rightly, because we should not pretend that resources are unlimited. I would be prepared to concede that, if there is a short-term lack of resources—a ward might have to close temporarily because of a building emergency or for refurbishment—it might be more difficult to meet the tests than otherwise. My abiding concern is that we do not allow short-term considerations to develop into a long-term prescription for the young person involved.

Angela Browning: I think that the Minister indicated this morning that it is her intention to consider an inappropriate admission of a child to an adult ward as an untoward incident. It would follow that appropriate action would then be taken. In my experience, untoward incidents are very serious matters that usually involve some sort of inquiry—more often than not an external rather than an internal one. At the end of the inquiry, specific recommendations are made. It seems to me that if one were subject to a series of untoward incidents with resource implications at the end, one might as well start off with the resources, rather than be dragged to the same position by one inquiry after another.

Tim Boswell: My hon. Friend is right. One should get things right from the start rather than have to make excuses if they go wrong or—dare I say it—produce the old canard that no treatment will be given because of concern that potential treatment might be inappropriate. That is not proper, nor is it professionally likely in the real world; people will do their best.
I am acknowledging to the Minister that there are practical constraints in any situation, including short-term constraints in particular. If I correctly remember this morning’s debate, I may say that it would be of assistance in relation to any defence under human rights legislation if Ministers could show that they were working towards improvements, rather than just folding their arms.
There might be a need for short-term derogations, which the Minister needs to think about and come back to us on, but I want to emphasise that there is no excuse for long-term systemic failure of the kind reported recently in relation to services. The hon. Member for Rhondda rightly said that we are a lot better off than we were 20 or 30 years ago, and I am glad about that; we shall not have a party political argument about it, as it is true. However, that does not absolve us from seeking a better basis for further progress, which is what the debate is really about.
If the Government are confident that they can deliver the improvements, that is all well and good. We have the Minister’s assurances. However, if they can indeed give delivery, why are they reluctant to underwrite that confidence by means of legislation?

Rosie Winterton: I welcome you back to the Chair, Lady Winterton. The debate has been a good one and the Committee has now agreed that the subject is important. We all want to make changes of the kind for which YoungMinds has been campaigning. However, I thought that the contributions from the Labour Benches were more constructive in that they acknowledged the need to be honest about some of the problems that might arise and to avoid legislating for changes that might have the opposite effects to those intended.
I felt that my offer to reconsider was slightly ignored by some Opposition Members. We are all determined to achieve proper accommodation for young people. YoungMinds has actually been very understanding, and it is as anxious as the Government are to ensure  that there is nothing that could be counter-productive. I am sure that no Committee members would actually want that, but it is important to realise that we are legislating on an important issue that affects very vulnerable people and that we need to do that properly.

Tim Loughton: I do not think that anyone would argue that the Minister does not agree with the principle, but we need a commitment that there will be delivery. It is true that she said that she would consider the matter. What will it take to make her change her mind so that there is express provision of the type that is being suggested? She has had some months to consider the matter. Does she need to consult more with counsel or other practitioners? Can she give us some indication of that? Otherwise, we cannot take on trust what she is saying that she would like to achieve in principle. In practice, we need to see more evidence of that.

Rosie Winterton: I am afraid that if the hon. Gentleman does not trust me, whatever I say will not change his mind.

Tim Boswell: Would it not be possible, in this spirit of discovering mutual trust, for the Minister to let the clause lie, go away in good faith and consider what should be done later and, if necessary, excise the offending clause or substitute one of her own on Report? She does not need to remove it now to make her point.

Rosie Winterton: I cannot do that, I am afraid. I need to ask the Committee to vote against the clause. However, I shall take the proposals away. I need to consider the legal advice that YoungMinds supplied and to talk with service providers and professionals about some of the issues. I also need—my hon. Friends the Members for Rhondda and for Bridgend mentioned this point—to consult Welsh Ministers about the implications. As the hon. Member for Tiverton and Honiton said, some changes are taking place, not least in her constituency, and I hope that hon. Members will accept that it would be wrong to introduce legislation that could have the perverse incentive of making children not get the treatment that they needed.
I will take the proposed amendments away, and I undertake to hold a consultation. I am more than prepared to keep in touch with both Opposition Front-Bench spokesmen about the progress that we are making. I undertake to do that. I hope that, in that way, we can reach consensus on what is the right way to proceed.

Tim Loughton: That is helpful. However, the Minister must appreciate that, just as we need to see more beef, she is apparently unable to trust us not to vote to keep the clause. Is she specifically saying that she has not taken any legal opinion about the viability of the amendment that was added to the Bill in the House of Lords some months ago? The only thing that instigated her asking for legal advice is that an organisation called YoungMinds met her and gave her its own commissioned legal opinion. Surely, she must already have sought legal advice on the viability of the clause. If so, perhaps she can tell us what it was.

Rosie Winterton: Basically, the advice that I have been given on the clause is as I set it out this morning: there are some problems with it. The proposed terminology discussed this morning talked about the registered medical practitioner, when we are talking about the responsible clinician. There are lots of areas where the proposal is faulty, and there are some problems with it.
I suspect that the hon. Gentleman just wants to vote against what we are saying. I accept that, but all I can say is that I have undertaken to take the proposal away, keep in touch with the Opposition Front-Bench spokesmen and to have close contact with YoungMinds about a range of issues that it raised with me, not least the legal advice that it gave us. I hope that, with that reassurance, the Committee supports me in opposing clause 24.

Question put, That the clause stand part of the Bill:—

The Committee proceeded to a Division.

Ann Winterton: The Ayes are 7, the Noes 12.

Tim Loughton: On a point of order, Lady Winterton. I do not think that there were 12 noes. Could we have a recount, please?

Ann Winterton: Will Dr. Gibson indicate whether he said aye or no?

Ian Gibson: I said no.

Ann Winterton: What I announced was correct. Actually, I think that the hon. Gentleman said “No way”!

The Committee having divided: Ayes 7, Noes 12.

Question accordingly negatived.

Clause 24 disagreed to.

Clauses 25 to 28 ordered to stand part of the Bill.

Clause 29

Civil partners

Question proposed, That the clause stand part of the Bill.

Ann Winterton: With this it will be convenient to discuss the following: New clause 1—Independent mental health advocacy —
‘(1) The 1983 Act is amended as follows.
(2) After section 59 insert—
“59A Independent mental health advocacy etc.,
(1) The appropriate authority must arrange, to such extent as it considers necessary to meet all reasonable requirements, for help from persons to be known as independent mental health advocates, to be available to qualifying patients.
(2) The help available under the arrangements must include—
(a) help in obtaining information about and understanding—
(i) what medical treatment is being provided to the patient,
(ii) why it is being provided,
(iii) under what authority it is being provided,
(iv) the requirements of this Act which apply in connection with the patient’s treatment, and
(v) the rights which can be exercised by or in respect of him under this Act, and
(b) help (by way of representation or otherwise) in exercising those rights.
(3) An independent mental health advocate authorised by a patient or his nearest relative on his behalf may at any reasonable time, for the purpose of providing, in accordance with the arrangements, help requested by the patient or his nearest relative, meet the patient in private.
(4) The appropriate authority may by regulations provide that a person may act as an independent mental health advocate only—
(a) if requirements specified in the regulations are met in respect of him; or
(b) if requirements specified in the regulations are met in respect of any person with whom arrangements are made for him to act as an independent mental health advocate; or
(c) in circumstances otherwise specified in the regulations.
(5) In making arrangements under this section, the appropriate authority must have regard to the principle that the provision of help under the arrangement should, so far as practicable, be independent of any person responsible for the patient’s treatment.
(6) This section applies in respect of the following patients—
(a) a patient who is liable to be detained by virtue of an application for admission for assessment or an application for admission for treatment under Part II of this Act;
(b) a community patient;
(c) a patient who is removed to a place of safety within the meaning of section 135—
(i) in the execution of a warrant under section 135; or
(ii) by a constable under section 136,
(d) an accused person within the meaning of section 35 remanded under that section to hospital for a report on his mental condition;
(e) an accused person within the meaning of section 36 remanded under that section to hospital for treatment;
(f) a patient in respect of whom there is in force—
(i) a hospital order,
(ii) a transfer direction,
(iii) a hospital direction,
(g) a patient, not being liable to be detained under this Act, who is asked to consent to any form of treatment to which section 57 applies.’.
New clause 2—Duty to inform patient of the right of access to an advocate—
‘(1) The 1983 Act is amended as follows—
(2) After section 59A, inserted by this Act, insert—
“59B Duty to inform patient of advocacy provision
(1) The appropriate authority shall have a duty to inform a qualifying patient of the right to seek the services of an independent mental health advocate as soon as is reasonably practicable after the patient becomes a qualifying patient and thereafter, at reasonable intervals—
(a) at all points where decisions are made about care and treatment;
(b) on the use of interventions to manage behaviour;
(c) in any case where an allegation of abuse, including offences relating to sections 38 to 41 of the Sexual Offences Act 2003, is made by a qualifying patient.
(2) In any case where it is proposed that treatment specified by regulations made by the Secretary of State pursuant to section 58(1)(a) should be given to a patient, the appropriate authority shall have a duty to inform, or as the case may be, remind the patient of the right to seek the services of an independent mental health advocate—
(a) before the patient is asked to consent to the specified treatment; or
(b) before a certificate has been given under section 58(3)(b).
(3) In the case of a patient who is a qualifying patient by the virtue of section 59A(6)(g) the appropriate authority shall have a duty to inform, or as the case may be, remind the patient of the right to seek the services of an independent mental health advocate before he is given any form of treatment to which section 57 applies.’.
New clause 15—Advanced decision (nearest relative)—
‘(1) The 1983 Act is amended as follows.
(2) After section 26(4) insert—
“(4A) Where a patient has made an advance decision with regard to the choice of a relative or other person to be his nearest relative, his nearest relative shall, subject to the power of the court under section 29 to appoint an acting nearest relative be determined by giving preference to that choice.
(4B) ‘Advance decision’ means a decision made by a patient (‘P’), after he has reached 18 and when he has capacity to do so and in contemplation that he shall become subject to any act or decision exercisable under the provisions of this Act that his choice of nearest relative shall take precedence over the provisions of subsection (3).
(4C) For the purposes of subsection (4A) a decision may be regarded as expressing a choice of nearest relative even though expressed in layman’s terms.
(4D) P may withdraw or alter an advance decision at any time when he has capacity to do so.
(4E) A withdrawal (including a partial withdrawal) need not be in writing.
(4F) An alteration of an advance decision need not be in writing.
(4G) An advance decision does not affect the liability which a person may incur for carrying out or continuing a treatment in relation to P unless the decision is at the material time valid.
(4H) An advance decision is not valid if P—
(a) has withdrawn the decision at a time when he had capacity to do so, or
(b) has done anything else clearly inconsistent with the advance decision remaining his fixed decision.
(4I) A decision or statement complies with this subsection only if—
(a) it is in writing,
(b) it is signed by P or by another person in P’s presence and by P’s direction,
(c) the signature is made or acknowledged by P in the presence of a witness, and
(d) the witness signs it, or acknowledges his signature, in P’s presence.
(4J) The court may make a declaration as to whether an advance decision—
(a) exists; and
(b) is valid;
(4K) Nothing in an apparent advance decision stops a person—
(a) providing life-sustaining treatment, or
(b) doing any act he reasonably believes to be necessary to prevent a serious deterioration in P’s condition, while a decision as respects any relevant issue is sought from the court.”.’.
New clause 20—Nearest relative (named persons)—
‘(1) Section 26 of the 1983 Act (“definitions of relative” and “nearest relative”) is amended as follows.
(2) In the cross-heading preceding Section 26 after “functions of relatives” insert “, persons acting as relatives”.
(3) Before subsection (1) insert—
“(A1) In this Part of the Act “named person” means any person—
(a) described in subsection (1) below; or
(b) not described in subsection (1) below who is the patient’s carer;
who has been nominated by the patient in accordance with subsection (1A) below.
(B1) In this Part of the Act “carer” has the same meaning as in Section 1(1)(a) of the Carers and Disabled Children Act 2000.”.
(4) After subsection (1) insert—
“(1A) A person is a named person in accordance with this subsection if—
(a) the nomination is signed by the nominator and the named person;
(b) the nominator’s and named person’s signatures are witnessed by two prescribed persons;
(c) each prescribed person certifies that, in the opinion of the prescribed person, the nominator—
(i) understands that the effect of nominating a person to be the named person will give him the role of nearest relative; and
(ii) has not been subjected to any undue influence in making the nomination;
(d) each prescribed person certifies that, in the opinion of the prescribed person, the named person—
(i) understands and is capable of performing the functions of the nearest relative; and
(ii) has not been subjected to any undue influence in agreeing to the nomination;
(e) the nomination has been forwarded to and registered with the local social services authority;
(f) in this part a prescribed person is—
(i) an Approved Mental Health Professional,
(ii) an Approved Clinician,
(iii) a provider of reserved legal service,
(iv) an Independent Mental Capacity Advocate.
(1B) A nomination under subsection (1A) above may be revoked by the nominator in accordance with subsection (1D) below.
(1C) The nomination of a named person is revoked in accordance with this subsection if—
(a) the revocation is signed by the nominator;
(b) the nominator’s signature is witnessed by a prescribed person;
(c) the prescribed person certifies that, in the opinion of the prescribed person, the nominator—
(i) understands the effect of revoking the appointment of a person as named person; and
(ii) has not been subjected to any undue influence in making the revocation.
(1D) The nomination of a named person shall be effective notwithstanding the nominator’s becoming, after making the nomination, incapable.
(1E) A person nominated under subsection (1) above may decline to be the nominator’s named person by giving notice to—
(a) the nominator; and
(b) the local social services authority in which the nominator resides,
to that effect.”.
(5) For subsection (3) substitute—
“(3) In this Part of the Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the “nearest relative” means, in descending order—
(a) the named person,
(b) the person first described in subsection (1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the halfblood and the elder of eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex.”.
(6) In Section 26(4) after “his nearest relative”, insert “under subsection 3(b) above”.
(7) In Section 26(5) leave out “(3)” and insert “(3)(b)”.’.
New clause 21—Independent mental health advocate—
‘(1) The 1983 Act is amended as follows.
(2) After Section 59 insert—
“59A Independent mental health advocate
(1) The appropriate authority shall have a duty to arrange for assistance to be provided from independent mental health advocates to be available to patients—
(a) detained under this Act, or
(b) subject to a compulsory treatment order,
at the end of the compulsory period of their treatment.
(2) Assistance provided under subsection (1) shall ensure that each of the following matters is addressed—
(a) help is available to patients in obtaining comprehensible information about—
(i) the medical treatment available to them in the community and access to such treatment,
(ii) social and care support in the community and access to such support, and
(b) help is available to patients to exercise their rights and entitlements in accessing treatment.
(3) The Secretary of State may by regulations specify the qualifications necessary for a person to act as an independent mental health advocate.”’.
New clause 24—Independent mental health advocacy (young persons)—
‘After section 125 of the 1983 Act insert—
“125C Independent mental health advocacy (young persons)
(1) The appropriate authority must arrange, to such extent as it considers necessary to meet all reasonable requirements, for help from persons to be known as independent mental health advocates, to be available for patients aged 18 years or under.
(2) The help available under the arrangements must include—
(a) help in obtaining information about and understanding of—
(i) what medical treatment is being provided to the patient;
(ii) why it is being provided;
(iii) under what authority it is being provided;
(iv) the requirements of this Act which apply in connection with the patient’s treatment; and
(v) the rights which can be exercised by or in respect of him under this Act; and
(b) help (by way of representation or otherwise) in exercising those rights.”.’.

Rosie Winterton: As you said, Lady Winterton, this debate is fairly wide ranging, and it includes clause stand part. Hon. Members have tabled new clauses that would provide for statutory independent mental health advocacy and a duty to inform patients of their right to it. Further new clauses would change the way in which a patient’s nearest relative is identified. New clauses 15 and 20 relate also to the nearest relative. New clause 15 would provide for an advanced decision and a written statement in which a patient can chose his nearest relative. New clause 20 provides that any patient capable of doing so could nominate a person to be their nearest relative. That named person would be on the existing list of relatives provided for in section 26(1) of the 1983 Act or defined as a carer under the Carers and Disabled Children Act 2000. I shall provide some background to the debate about the nearest relative.

Angela Browning: Will the Minister give way?

Rosie Winterton: I shall move on, as my remarks might deal with where the hon. Lady is coming from. In the 2004 draft Bill, we removed the nearest relative because detention was to be authorised not by an authorised medical health professional supported by two medical recommendations, but by an independent mental health tribunal after 28 days. In the light of that fundamental change in the legislation, the powers of the nearest relative were no longer appropriate.
We did create the role of nominated person. As hon. Members might be aware, the pre-legislative scrutiny Committee recommended that the nominated person be given similar powers over the patient’s discharge to those of the nearest relative. In our response, we rejected that recommendation because the safeguards in the 2004 draft were constructed differently from those in the 1983 Act, and we did not agree that the nominated person should be given the powers of the nearest relative in order to provide the patient with the necessary safeguards. The nominated person was, in a sense, a patient representative and did not have the nearest relative’s powers of discharge or detention. The nominated person and nearest relative are thus fundamentally different, and we cannot simply replace one with the other.
The changes that we have made in the Bill will allow patients to apply to the county court to displace their nearest relative in certain circumstances and to nominate a replacement. The change is an addition to the existing provisions and will allow an AMHP, any relative of the patient or anyone living with them to apply. No matter who makes the application, if the person nominated in it is suitable and willing to act in  the role, the courts must appoint that person. By making that change, we have therefore increased patients’ input into the choice of an acting nearest relative when they do not have one, or when the one they have is replaced.

Tim Boswell: I welcome in principle the extension of choice—there is no problem with that—but bearing in mind our shared experiences with the Mental Capacity Act 2005 and the analogy with a lasting power of attorney, even though it is not a precise one, will the Minister advise the Committee either now or on reflection whether there is any provision, presumably in the court, to remove a nearest relative nominated by the person concerned if, although suitable at the time, they subsequently become unsuitable or evidence emerges as to their unsuitability for continued functioning in that role?

Rosie Winterton: Yes, of course, because there will be an ability to return to the court to remove that person if they become unsuitable.

Angela Browning: On a point of clarification, when we talk about carers, are we excluding paid professional carers?

Rosie Winterton: I am pretty certain that if the court feels that it is suitable for any individual nominated to be the nearest relative, that will be up to the court to decide. If the court feels that a paid carer is the appropriate person, that will be possible, but it is up to the court to decide whether such a person, if nominated by the patient, will be a suitable choice. It will have to be a court decision whether that is right. If the person is considered suitable, the court must appoint them.

David Kidney: As for going to a court to overturn a nearest relative, court proceedings must be much less daunting for a big mental health trust or a primary care trust than for an individual patient suffering a mental disorder. As a matter of principle, would it not be better for the person to choose their nearest relative and, if that person were unsuitable, for the trust to go to court to set the person aside?

Rosie Winterton: My hon. Friend makes a good point. Of course, we want as much patient choice as possible in such difficult circumstances, but it is important to remember what we are expecting of a nearest relative. That person has the power to block an admission to hospital or to request a discharge, for example. Such matters are quite sensitive, because the nearest relative may be the continual carer for the person, but we all recognise circumstances in which a person becomes very ill and sometimes rejects the carer.

Madeleine Moon: Let us consider a situation in which I am mentally capable and decide that I want someone to manage my affairs in the event of my losing capacity. I can take out an enduring power of attorney in which I specify an individual to manage my financial affairs. It can be any individual of my choice. If I lose my capacity, that must be watched.
Why is it not right for me as an individual, when mentally well, to have an equivalent of an enduring power of attorney and to decide on the person who, in the event of my losing capacity, I wish to act as my nearest relative? No one needs to go to court to carry out an enduring power of attorney when they are mentally rough. Why is it necessary for someone who perhaps for many years has suffered mental health problems to face the additional trauma of going to court to dislodge a nearest relative?

Rosie Winterton: That is when the judgment has to be made about what are sensitive issues. We need to be clear about the role of the nearest relative in such circumstances. It is a great responsibility to have the ability to block an admission or to try to discharge someone. The decisions that we have to weigh up are on those circumstances whereby one might wish constantly to change the nearest relative and on very sensitive issues when an individual might feel that the most appropriate person was not just the relative who might be most willing to block an admission or try for a discharge, but someone whom the individual might have met recently.
We have extended the powers to say that, if the person wishes to remove their nearest relative, they can nominate someone else. It is quite important to recognise that we had to weigh up the issue of someone perhaps constantly changing their mind because an individual had not necessarily done what that person had wished them to do, and weigh up the ability to make an application to change the nearest relative and have before the court good reason to make that change. That was why we had to get that balance between those two situations, which are very sensitive because of the powers involved. If a person wanted to nominate an individual to whom power would be given if they were to lose capacity, because their nearest relative was not considered appropriate, they could apply to the court and do so if they thought it the right thing to do and the court said that that person was suitable. I admit that it is a fine judgment, and it is sensitive because of the particular role of the nearest relative and the fact that we did not want a situation whereby somebody could constantly change their nearest relative and make the management of care extremely difficult.

James Duddridge: The Minister has explained that there is a balancing act. On one side of that balancing act, what costs and time will be involved for the individual going through that court process? I would be scared to go through the process as an able-bodied, able-minded individual, although other people might not be. Also, what will be the cost and time implications for the already stressed court system?

Rosie Winterton: On the cost to society, if one can put it that way, there needs again to be a balance. We do not want people constantly to go to court, which is why we set strict limits. We want to ensure that there is an adequate check so that somebody cannot decide on a different person over and over again.
The other issue that comes into the equation relates to the point made by my hon. Friend the Member for Bridgend. There may well be people who do not want  to be a nearest relative because of the responsibilities that they would have to take on, so it is important that we have a system that includes the right not to be in that position.

Tim Boswell: I have been listening to these exchanges with interest. The Minister mentions somebody making a decision to change their nearest relative. Will she clarify whether a person making that decision must have mental capacity at the time? I believe that the inference is that they must, just as they would have to if they were to appoint somebody with the lasting power of attorney for their health care under the Mental Capacity Act 2005. If such a person wished to manipulate the situation to change day by day the person nominated as their nearest relative, would not that be exactly the kind of problem that could in principle arise under mental capacity legislation? Or is the Minister thinking of a situation whereby somebody has a mental disorder and therefore lacks capacity at the time of making the decision, in which case the individual concerned would only be expressing their opinion? Which set of circumstances bites in this case?

Rosie Winterton: I need to clarify the fact that it is not just the patient who will be able to apply for a nearest relative to be displaced. An AMHP, a relative or a carer who lives with the individual in question could do so if it were considered that something was wrong in the position of the nearest relative and they had become unsuitable. In that sense, it goes wider than just the patient. Whether with or without capacity, they could still apply, but to reassure the hon. Member for Daventry, I point out that there are others who can apply on the patient’s behalf if it is felt that the nearest relative has become unsuitable.
 Let me deal with some of the new clauses. As I am sure hon. Members will know, there are already advance decisions under the Mental Capacity Act 2005, but those relate only to refusals of treatment and they come into play when a patient loses capacity. That should not be confused with the advance decision under new clause 15, which relates specifically to the patient choosing his nearest relative and is to be effective as soon as it has been made. Although new clauses 15 and 20 adopt different approaches, they aim for the same goal: to provide the patient with choice over his nearest relative. We are certainly not opposed to the principle of patient choice, but we must be clear that the nearest relative is not the same as a patient representative or next of kin and should not be treated as such.
 It is important to remind ourselves that, obviously, compulsion is imposed only when patients do not accept or do not understand that they need help—help that independent professionals agree is necessary. We need to remember that it is not unusual for there to be a disagreement between a patient who wants to be discharged and the nearest relative, who in very difficult circumstances will sometimes reluctantly have to accept that compulsion is the best course of action. If the nearest relative is to continue to exercise the right to block detention or to discharge the patient—both are important safeguards from the patient’s point of view—it is important to have that degree of independence of both practitioners and the patient, and the ability to exercise those powers in the way he thinks best.
The problem with the new clauses is the possibility that that independence would be undermined. Obviously, there are very difficult issues to do with the relationship between the patient and the nearest relative, who may be the carer. There are disagreements. The nearest relative may on occasion feel rejected because the patient feels that they have not done everything possible to discharge them, but we are talking about difficult circumstances in which the patient is under compulsion because they do not accept that they need the treatment in the first place.
 There is an issue about whether there is an incentive for prospective nearest relatives who do not believe in compulsion, for example, to put themselves forward and offer to discharge patients whatever the circumstances. That is why we need to build a protection into the system to ensure that the person is suitable.
I hope that hon. Members will accept that the objection is not to the principle of patient choice per se. However, we need a system that keeps a proper check and balance on the issues to do with the nearest relative, while at the same time making some of the changes that we have made in the Bill by extending the ability to replace the nearest relative.

John Pugh: On new clause 24, where the right of the patient to nominate is given paramount significance, what specific damage does the Minister think that that is doing or is likely to do?

Rosie Winterton: In terms of the nomination, we have made it clear that if the patient wishes to displace a nearest relative, they can go to court and put an individual forward. However, we want people to go through that system to ensure that things are not constantly changing, which is a possibility, and that there is a proper check to ensure that the person is suitable to undertake the role. It is a matter of getting those two things right.
On new clauses 1, 2, 20 and 24, which deal with advocacy, I should say at the outset that, of course, the Government recognise the important contribution that advocates can and do make to patients’ care and treatment and we value highly the work done by many advocates who are already working in the health services across England and Wales. The Government are committed to supporting and developing that important role, particularly in mental health services. We have commissioned work to develop specialist training in standards for mental health advocates, as well as systems to support the commissioning of services. However, as a result of what was said in the other place, we have agreed to consider advocacy and return to the matter in this House. The work that we have commissioned is helping to inform that consideration.
 The draft illustrative code of practice provides guidance to practitioners on when advocates should be involved. It is true to say that advocates can support patients in understanding the information that is presented to them. Perhaps even more importantly, they support patients in increasing their own involvement in decisions about their care and treatment, including decisions about care and treatment after a patient has been discharged from compulsion. With the support of advocates, communication  between patients and practitioners can be greatly improved. There is no doubt that support of that nature can make a dramatic difference to a patient’s experience of detention.
 We committed in the other place to consider and return to how advocacy can best be made available to detained patients as well as to those who receive community treatment orders. Although we recognise the huge benefit that advocacy can bring, we must not miss the opportunity to develop an effective tailored advocacy service by rushing through measures on some of the important issues, such as those that have been brought to the fore by hon. Members in the new clauses.

Angela Browning: Under the Minister’s proposals, will there be a right in the Bill for a person who is undergoing treatment and who seeks an advocate—an advocate would certainly be needed for an in-patient who wanted to make a challenge through the court, for example—to request advocacy and receive it?

Rosie Winterton: That is exactly the sort of issue that we are considering. It is about identifying the instances when advocates are going to be most particularly needed and making the best use of their time. That is what we had to do with the Mental Capacity Act 2005, as the hon. Lady knows. During the passage of the 2005 Act, we looked closely at how we could make proper provision, but gave ourselves the ability to widen it through regulations if necessary.

Tim Boswell: We have indeed continued the dialogues that we initiated in Committee on the 2005 Act in subsequent discussions, for which I am grateful to the Minister. I take it that her response to my hon. Friend the Member for Tiverton and Honiton is a conditioned yes; I do not wish to take the Minister further than she wishes to go at this stage, but the Committee needs to know. The principle of having advocacy for which there might be some public provision is conceded. Rightly, she now wants to consider what the coverage and structure of that provision should be, and how much will need to appear in regulations. Most of us want to see something happen, but we would not necessarily wish to tie her down at this stage; we would like some assurance that measures will be forthcoming before the Bill has completed its parliamentary passage.

Rosie Winterton: That is absolutely right. On the point made by the hon. Member for Tiverton and Honiton, there would be legal representation for those going before a tribunal, but sometimes advocates can help ensure that the legal representation gets the point. We need to look at what are the most appropriate circumstances for people both with and without capacity.

Tim Loughton: I cannot help but admit that I am a bit perplexed. The Minister has just said that she is looking at the issue of advocacy, but the Government have had rather a long time to do that—the issue was in the original draft Bill, and the Government appeared to accede to its inclusion. Only a few months ago, when debating regulations relating to the Mental Capacity Bill, we discussed the success of the pilots of advocates, which is now leading to their expansion. What further research does she need to do on the subject?

Rosie Winterton: First, it is vital to get the views of the Committee. The point of having a Committee such as this is to explore, with such great brains as are here in the room, some of the issues that are now being raised, and to give my hon. Friends and Opposition Members the opportunity to contribute to the formulation of policy. I can assure the Committee that I would not miss such an opportunity for the world. It is important that we have the ability to take the Committee’s ideas on board.
 We need to ensure that advocates can function properly and meet the needs of the patients with whom they work and that they can have access to patient’s care plans if necessary and meet the practitioners involved with a patient’s care and treatments. Obviously, certain groups of patients—children, adolescents and those from black and minority ethnic communities, for example—might have specific advocacy needs. We wish to ensure that any statutory provision of advocacy services can take account of such needs by providing advocates with the right skills to do the job.
It is important to say that the Government recognise the point being made in new clause 2 and that it is vital that advocacy services are not underused simply because patients are not told about them. Patients should be told about advocacy services when they need them; not afterwards. For example, informal patients for whom section 57-type treatments are being considered could benefit from advocacy when the treatment is first being discussed, before consent is sought. Patients should be informed or reminded of the availability of advocacy services when the issues are being discussed and not only when the decision to pursue such treatments has been made.
It is important that the new clauses give us the opportunity to discuss some of the issues of advocacy that I am sure hon. Members want to address, and to emphasise how important it is to get it right. That is the importance of this debate. As I said, I hope to return to the issue on Report. In light of that, I hope that hon. Members will accept my assurance that I recognise the vital importance of the issue.

John Pugh: I thank the Minister for adopting such a constructive and positive approach to the amendments. The Committee is turning out more as I hoped than as I feared. We are making some progress, albeit fairly slowly, and the Minister must take some of the praise for it.
In her explanation of the nearest relative’s replacement by a nominated individual, I understood the Minister to be suggesting that it was not the principle of new clause 24 that she objected to but the route that would be followed to identify the person to be nominated. I am quite happy to take away new clause 24 and reconsider that, but the issue of advocacy, as was emphasised on Second Reading, is a big issue for a lot of hon. Members. Advocacy is well understood, and the Mental Capacity Act 2005 illustrated how successful, useful and positive it can be. New clause 24, which would simply establish the right to advocacy, and new clause 2, which would establish the right to be informed about such advocacy, are relatively detailed amendments. We are suggesting that a well-understood phenomenon be attached to the Bill.
I am happy to accept the Minister’s assurances and to look forward to what might occur on Report, but I should like to make a few fairly simple points about why advocacy is so important. The general assumption in mental health is that the therapist has the good of the patient at heart. Most therapeutic relationships are entirely satisfactory, but some can be difficult and problematic, and that is where advocacy has a place and a part to play.
I had the opportunity many years ago to teach evening classes at what was then Park Lane special hospital, later called Ashworth hospital. In that class were a number of people. One chap, whom I remember particularly, was a gentleman called Peter who was astonishingly articulate, very good at arguing his case and forceful in putting points and constructing arguments, although in a perfectly friendly and amicable way.
Many years later, I saw the same gentleman on TV in a programme about Park Lane. He was arguing with the consultant psychiatrist exactly as he had done in my classes. I had encouraged that behaviour, because we were discussing things, but the programme carried on to show that the psychiatrist thought that his very stubbornness in failing to admit that there was something wrong with him was indicative of the fact that he was still ill and should be detained. I believe that he was originally detained for putting a Molotov cocktail through a letterbox after an unfortunate romantic relationship had turned out wrong. He knew that and had changed, but the very fact that he was arguing his case left him in a Catch-22. Because the psychiatrist presupposed that he had a mental disorder, almost anything that he did was seen as indicative of that mental disorder.
In a classic experiment called the pseudo-patient experiment done years ago by American psychologists, people with absolutely nothing wrong with them were admitted to a mental hospital to see exactly how they would be treated. They behaved entirely normally. At the end of the day, as they were researchers and it was their project, they retired to their rooms and secretly wrote up the notes of their day’s observation on the mental wards. The ward staff spied on them, went back to the office and wrote down, “Exhibits strange writing behaviour”.
It is sometimes quite hard for a therapeutic relationship to be satisfactory without sufficient subtlety on the part of the therapist. Many patients, including Peter, will therefore at times require an advocate to get the right outcome—one in which their ailment is properly identified, therapy is properly in place, and detention is either put into effect or not.
New clause 24 would introduce similar rights for children. It might quite rationally be suggested that children already have advocates in their parents. However, some of us know how complex parenting can be, and how strange is the take of some parents on the process. I have genuinely observed a little lad waiting to see a consultant psychiatrist. He was as good as gold, but every time he moved a limb or his tie moved out of place, his father shot across the room, straightened the tie or removed the crease in his trousers or whatever, and told him to sit up. I could see the problem there and then, and I would hate that father to be the sole advocate for this child, because he was part of the problem.
I do not subscribe to the R. D. Laing theory, as set out in “Sanity, Madness and the Family”, that it is our family that actually drives us mad. However, it sometimes happens that way, so there is a case for advocacy for children, and there is certainly a case of advocacy for adults. If the Minister is considering the point, however, I am prepared to develop it further and bide my time.

David Kidney: There are two groups of proposed new clauses. One group relates to the role of nearest relatives and the other to the advocacy role. I shall first speak on new clause 15, which was tabled in my name and which relates to the role of the nearest relative.
The Mental Capacity Act 2005 has opened the gates both in this area of law and in others. We shall be dealing later with the Bournewood class of vulnerable individual, and there is a raging debate among mental health practitioners on issues of capacity and mental disorder. New clause 15 seeks to bring a further issue to the fore—that of advance decisions.
The Mental Capacity Act formally established independent mental capacity advocates, and some of us are seeking to replicate that concept in the Bill. That Act was a landmark piece of legislation in many ways, though it did not, of course, mark the beginning. The common law and the courts had already recognised so-called living wills and advance directives for medical treatment long before the Act was passed.
I accept what my right hon. Friend the Minister has said about there being a world of difference between the nearest relative under the Mental Health Act 1983 and somebody’s next of kin or advocate; they carry out completely different roles. The nearest relative carries out some important formal roles under the 1983 Act that have real substance and meat, and we are seeking to amend that Act.
My proposal is that adults with mental capacity who are not suffering from mental disorder should be able to specify the person whom they would want as their nearest relative to make crucial interventions on their behalf were they to be ill at a later date, rather than having to rely on the list in the 1983 Act. I am not decrying the value of the list, although in kinship terms the language of it—with its approach based on ties of blood and with references to “whole blood”, and “half-blood”—is slightly old-fashioned. The order of individuals in the same class, such as brothers and sisters, is determined by age and nothing else. There is very little mention of carers at all, except that a relative who has been living with the patient as a carer can displace all the other relatives.
The list is a little staid and out of date, and its role should be that of a useful default position. I would prefer that it be used only if a patient has said nothing, rather than being the decisive factor even when a patient wants something different.

Tim Boswell: Conversely, does the hon. Gentleman agree that if a person takes the step when they have capacity, perhaps with the knowledge of previous mental health problems, of appointing someone with the lasting power of attorney in relation to their health care decisions, as they can under the 2005 Act, there should be a presumption that that person can discharge the functions of the nearest relative unless there is an issue of suitability for a court to consider?

David Kidney: The hon. Gentleman makes an important point. I was flattered to find that I have attracted the support of Rethink for new clause 15. In its briefing in support of the new clause it refers to the point that he has just made: that a person with capacity and not suffering from a mental disorder can appoint with a lasting or enduring power of attorney someone whom they want to make decisions about their health treatment for them in the future. That might be mental health treatment. However, the Bill refers to the nearest relative instead of the person appointed. I am trying to bring mental health legislation in line with the more modern mental capacity legislation. The person appointed should make the decisions, not the nearest relative, but if nobody is appointed the nearest relative list is fine and dandy to take over and have its role.
I know from the debates in the other place that my right hon. Friend the Minister will say that we do not want people to make fanciful appointments of the person next door, who will do everything possible to get them out of the hospital rather than have their interests at heart. That itself is a fanciful argument. The new clause that I have drafted—I confess that I have drafted it—would require a certain amount of formality for a person to consider the matter and appoint someone to the role of their nearest relative. They would have to put it in writing and it would have to be witnessed by somebody else. They would have to sign it and understand and acknowledge their signature in front of the witness, who would then sign as well. There would be a proper element of formality in appointing someone.

Ian Gibson: Does that also mean that they would not have to give reasons for picking one advocate over another and that it would be their decision absolutely?

David Kidney: Absolutely. That is perfectly correct.
 We might assume that the nearest relative’s role is to have the patient’s best interests at heart. To harp back to the discussions that I had with psychiatrists in the Stafford constituency before we began our deliberations, they told me that many times their problem is that they cannot engage the nearest relative according to the list in the 1983 Act, with the treatment being given to the patient. They know who the relevant person is by looking up the patient’s family tree and the 1983 Act, but they cannot get them to come and take an interest in what is going on with the patient. That seems a terrible indictment of a law under which we want the nearest relative to act as a supervisor of what is going on on behalf of a person who temporarily, because of a mental disorder, cannot do it for themselves.
The Government acknowledge that that is sometimes a problem by making the provision for the nearest relative to be displaced through an application to the county court. All Governments have done so. My point to the Minister in my intervention on her earlier was that it is one thing for a well-resourced trust, with great experience of lawyers and courts, to go to court to try to get an unsuitable nearest relative displaced, but quite another for a vulnerable patient to be told that the 1983 Act states that someone in particular is their nearest relative and the person whom they must have.
 We have received briefings from other organisations. New clause 20, which proposes the named person, is supported by the Mental Health Alliance. Its briefing mentions some of the court cases in recent years that have shown the limitations in the current approach. In the case of J. T. v. United Kingdom in 2000, a woman did not want her mother to be her nearest relative because her mother was living with her stepfather, whom she alleged had abused her. In answer to that European Court case the Government gave undertakings to change the law. The only law that is being proposed is that the vulnerable woman must apparently go to the county court to say that she does not want her mother to be her nearest relative because she is living with the man who abused her. It is quite an uphill job to expect the person to do that.

Rosie Winterton: I want to make it clear that, under the changes, we are saying that it is not only up to the individual; we recognise that such issues could put an individual in difficulties. An approved mental health professional or another relative can make an application on the patient’s behalf. We are not entirely leaving matters up to the patient.
It is also important to recognise that the role of the nearest relative is not to act as the patient’s representative or on behalf of them. It is a different role from that. It is not a replacement for an advocate, for example, or a patient representative. The person needs a certain degree of independence because of the issues involved in being able to block admission or ask for discharge. That careful balance must be reached.

David Kidney: My right hon. Friend has made two points, neither of which I accept. First, she said about the specific example that I cited that perhaps another relative could go to court instead of the vulnerable patient, and that that person should challenge the mother and say that she should not be the nearest relative. That is an unlikely scenario. It is more likely that the patient appoints someone else instead of the mother, and that the trust, which thinks that the mother would be a better appointment, takes the matter to court to challenge it.
As for the second point, I entirely agree with my right hon. Friend that the nearest relative is much more than the representative or the spokesperson of the patient. The person has important rights, such as the right to apply for admission to hospital; the right to apply for guardianship; the right to try to block compulsory admission for treatment; the right to require an approved social worker to consider the need for admission to hospital; the right to discharge the patient from section and the right to be consulted about any decision to detain.
A relative who perhaps has not been in touch with the patient for a year or two will not necessarily be the person to exercise those rights compared with, say, a best friend who has lived with the person for many years but is not married them and has been the carer, but who is not even on the list at present. That is the difference.

Tim Boswell: I have just reflected on what the hon. Gentleman said. Does he agree that it is almost possible to argue to the Committee that a nearest relative might be, if not formally unsuitable or judged unsuitable, in a position that gave rise to concern? A person might need an independent advocate to approach the court to review the possibility of appointing a separate person as the nearest relative.

David Kidney: Mostly, I do not find that intervention helpful because I was trying to keep separate the argument about nearest relatives from that about advocates. I suppose the intervention made it clear that the role of advocacy is completely different. The hon. Gentleman is right. An advocate then might help by standing shoulder to shoulder with the patient to put forward their case for them.

Brian Iddon: I have a problem with advance decisions, which I put strongly on the record when the Mental Capacity Bill was being discussed. In fact, together with other hon. Members, I fought placing advance decisions in statute law. I should have preferred them left under common law. My hon. Friend’s new clause clashes with some of the proposals in respect of the advance decisions that were agreed, sadly, in the debate on the Mental Capacity Bill.
For example, proposed new subsection (4K) refers to an “apparent advance decision” stopping a person. Will my hon. Friend clarify the meaning of “apparent”? The proposed subsection states:
“Nothing in an apparent advance decision stops a person—
providing life-sustaining treatment”.
When discussing the Mental Capacity Act, we had a terrible debate on artificial hydration and nutrition, which the medical profession regards as medical treatment. Has my hon. Friend considered his new clause along with the agreed part of the Mental Capacity Act? There seems to be conflict.
Secondly, it is generally recognised—

Ann Winterton: Order. I think that the hon. Gentleman has made his point.

David Kidney: Again, my hon. Friend takes me down an avenue that I do not wish to go down. He has some strong views on a slightly different subject that is not at all relevant to this one. However, just to deal with the question that he asked me about proposed new subsection (4K), the point is that if there is some doubt at the time of presentation for treatment in a mental health facility as to whether there exists such an appointment, or there might be some legal challenge to that appointment or some court case necessary as a result of disagreement about it, people can carry on and give treatment in the meantime until that doubt is resolved.
 I want to complete my arguments about how the present law is not currently as effective as it might be, due to court decisions arrived at since it was enacted. The latest one was R (E) v. Bristol city council in 2005. The court said that a patient with capacity could decide that their nearest relative under the Act must not be consulted by health professionals. It seems that a person can say, “All right, the Act says that’s my nearest relative, but I forbid you to have anything to do with them.” The treating practitioners will respect that decision, because a court now says that that is the right thing to do as well. Yet that person cannot go a step further and say, “I don’t want you to tell them, but I want this person to be my nearest relative.” The two things do not hang together. It would not surprise me, if we just leave the law as it is now, if there were another court challenge later, saying that that was not acceptable. Let us please get the legislation right first time and not wait for the courts to tell us that we got it wrong. Making an appointment would give us a procedure that is more flexible and more tailored to the circumstances of the individual patient, avoids the great expense of court challenges in most cases and gives us a degree of speed and certainty from the outset.
 I should like to say a little bit about the other new clauses on advocacy, because I am a strong supporter of what I would call citizen advocacy. Once upon a time, I was a lawyer. Many lawyers are good at some kinds of advocacy, but they charge a lot of money for it. However, in this debate, we are not talking about that kind of advocacy. I have a slight interest to declare, because in Staffordshire, back in the 1980s, I was a founding member of Advocacy Services in Staffordshire or ASIST—a citizen advocacy scheme. Over 20 years, both as a member of that organisation—I am its honorary patron—and as a Member of Parliament, I have had contact with advocates on behalf of the people for whom they advocate and I know how important their role is.
Back in the 1980s, giant hospitals housing many people, some with nothing more than learning difficulties, were being closed and people were being given proper homes in the community. At that time, advocates were appointed who did fantastic work to ensure that those people were not just taken from one dumping ground to another. Vulnerable people received a superb service in the community, because of the help given by advocates. Many times as a Member of Parliament, I have been contacted by advocates who are simply standing shoulder to shoulder with a person who is entitled to ensure that their voice is heard in the right places. I have never seen anything other than appropriate contact with MPs to enlist help for a person where an MP’s intervention is warranted. That is why I support advocacy.
I understand that the Government support advocacy, too. I have just mentioned that the Mental Capacity Act 2005 makes more provision for independent advocates to help people in cases involving mental capacity. We are looking for the Government to provide for similar independent advocacy in mental health cases. The Government have paid for research and for formal courses of study to be worked up, leading to recognised qualifications for people to be citizens advocates. A lot of work is being done in that regard at present. I understand the Minister’s saying that it takes time to reach a position of being satisfied that a body of advocates is available, we know what their role is, we can rely on them to do their job well and we know how to fit them into the legal framework affecting everybody else. I am prepared to be patient and to see the Government’s proposals, but I congratulate those who have drafted the new clauses dealing with advocacy on making sure that the issue is on the agenda as the Bill passes through the House.

Angela Browning: I should like to touch on two points, the first being the question of the nearest relative. I am of the view that the current legislation—the list set out in section 26 of the 1983 Act—is now somewhat anachronistic. It reads like an inheritance tax situation in which the bloodline goes down through the family and people find that they have been left a lot of money by a nearest relative whom they have never met. The idea when talking about somebody’s mental health that a person, simply because of a blood relation, is suddenly responsible for or even interested in them, is not how society works now. Many years on from the 1983 Act, families tend to be more disparate, and other relationships come into play.
The Government would do well to reform the definition of the nearest relative. Like others, I advocate the views of Rethink and others in the mental health world who have offered proposals, such as the suggestion that the primary carer should be top of that list. The primary carer may well be a blood relative—it may be a mother—and they may not, but their views should be taken into account and the patient should have the opportunity to nominate them if they are the person whom the patient trusts the most and with whom they have the most day-to-day contact. They might be somebody who takes day-to-day responsibility for the patient’s well-being.

Ann Winterton: I want to take this opportunity to clarify for the hon. Lady and my hon. Friend the Member for Stafford that someone living with the person for five years will be a nearest relative, and that a relative who cares for a patient is prioritised in the proposals and will go to the top of the list. The position is not quite as simple as it was. The hon. Lady is quite right to say that the 1983 Act was somewhat out of date. That is why we want to make some of the changes that we are making.

Angela Browning: I welcome that intervention, but I also want to flag up the fact that the patient’s view of the nearest relative, whether there is a bloodline or not, is also very important. I hope that the Minister will listen carefully to the representations made today about how patients themselves should have input into deciding who the nearest relative is likely to be. From many of the case studies provided to the Committee, we can see that that would be a step forward.
I remind the Minister that in the famous Bournewood case, HL’s carers, although they were paid carers, had responsibility for his day-to-day care, whereas his nearest blood relative had nearly no contact with him at all. They were well placed, had the psychiatrists at the time been willing to engage them in conversation, to explain his behaviours, how he reacted to certain situations and so on. For some patients, advocacy is not just about their mental disorder, but about their additional difficulty in expressing themselves or communicating, particularly to people with whom they are not familiar, and about the complex situations that arise if the right person is not there to interpret how they respond and behave on a day-to-day basis. I have probably bored the Committee enough by now with my accounts of how people with autistic spectrum disorders behave, but I return to discussing that group of people because they are particularly vulnerable, as are people with learning disabilities, in terms of how they present and how important it is that the person who interprets that behaviour is the person who really understands them on a day-to-day basis.
May I move on briefly to advocacy? Advocacy needs to be there for the patient, but in some circumstances it will be the nearest relative who may need to ask for advocacy on behalf of the patient. The nearest relative may not feel that they can cope with a certain situation. I still have concerns about the idea that the court is the only route down which someone can go. For someone who is an in-patient, the stress and strain of that being virtually the only route worries me considerably. I ask the Minister to examine that point. I believe that advocacy should be available not only to the patient but to the nearest relative or the patient’s representative if, in certain circumstances, they feel that advocacy is needed.
I put it to the Minister that the nearest relative may well be a close blood relative. I hope that hon. Members will understand this. If someone is a blood relative of a person who is mentally ill or incapacitated, although they try to do their best for them and to put the case for them, emotionally that is a very difficult thing to do. I can stand up and advocate for any of my constituents with an autistic spectrum disorder, but when I have tried to do it for my own son, I have found it enormously difficult. People may find that difficult to understand, because I can usually bat for England on just about anything, but the emotion is quite intense and you really want to do your best for them. I can think of times when I have called on other people to make the case for me even if I am sitting in the room.
 I therefore ask the Minister to bear in mind the need for the advocacy service, however she determines it in her deliberations, to be available in certain circumstances not only for the patient but, often, for the patient’s nearest relatives, who may well say, “In these circumstances, we understand the situation, but the case will be better put by somebody who is one step away emotionally from the situation we’re dealing with.”

Meg Hillier: It is a pleasure to serve under your chairmanship, Lady Winterton. It is also a pleasure to speak on this issue, which is of great importance to so many people in the mental health system and particularly to many of my constituents. If I may, I shall preface my remarks with thanks to some of the groups that I have managed to speak to over recent weeks and months since arriving in the House. My local Mind group has been particularly helpful. The Psychiatric Rehabilitation Association, the Turkish and Kurdish advocacy group, Derman, and the Revolving Doors Agency in particular have been very helpful. I have also had the opportunity to talk to a number of mental health service users in my constituency and professionals in Hackney and elsewhere, who have all had views on the issue.
I shall speak to new clause 21, which I tabled, and make some general comments about advocacy as outlined in new clause 1. Since tabling my new clause, I have been advised that it might be better placed under section 117 of the Mental Health Act 1983, which relates to aftercare, but I leave that to those who are more expert than me at drafting to debate, because the main aim of tabling the new clause was to raise the issue of advocacy. I was comforted somewhat by the comments of my right hon. Friend the Minister, but I thought it important to flag up the issue, because it affects so many people.
In Hackney, people are disproportionately affected in respect of the mental health system by being admitted to hospital. In fact, admissions for schizophrenia are three times higher for my area than the English average. The issue also affects many residents in my constituency who do not suffer from mental health problems themselves, but who deal with the fallout from people not having support systems. I wanted to highlight their concerns, too. It is partly about health, and partly about advocacy for social and ongoing care support, which is the focus of new clause 21.
An advocacy-armed hospital is important because of the overlap between mental health and social services. There is a revolving door of people going in and out of hospital. I do not believe that the proposed measures will stop that, because if a person refuses to receive their medication, advocacy will not necessarily make them take it or get a better service, but it will help them to access other services. Maybe in the long run, that will ensure that chaotic lives are made better.
We can see the impact that advocates for people with chaotic lives who are in the mental health system when they use other services could have; for example, people in A and E or those who have been admitted to prison could be helped to access their welfare rights. Excellent outreach work is done up and down the country, including my constituency, that supports people through maintaining work and in the community. We need such a continuum of support, but unless people have the right to argue for support and the advocate to help them, they often lose out.
This quite startling example was given to me by the Revolving Doors Agency: half the people referred to mental health treatment from police stations have not made a legitimate benefit claim. That is to say that they are entitled to benefits, but they have not made a claim. As I said on Second Reading, not making a benefit claim can lead to other problems. It might mean that a person gets no housing benefit; without that, they can lose their tenancy. Those things impact on a person’s lifestyle and mental health and might lead to unnecessary readmissions to hospital. If we tackle the issue of advocacy, we can tackle some of the longer-term issues.
 I will not go into issues concerning particular instances of mental health among black and minority ethnic groups as the new clause does not deal with them. However, it raises the issue of the complexities of dealing with people with mental health problems who might have language issues such as English not being their first language, or literacy issues. Those complexities arise in my constituency and others. Also, cultural differences might not be fully recognised by professionals. With the right type of advocacy, the issues can be better addressed and understood by the professionals dealing with them. For example, who is best placed to advocate for a middle-aged Turkish man, who is not literate in Turkish and unable to speak English well, who also has other issues arising from his arrival in this country? We need to look sensitively at who can provide advocacy for such people in particular.
Professionals in Hackney deal with much more than health when they deal with mental health. The issues of advocacy help them to tackle that. The professionals to whom I have spoken would welcome good advocacy. I mentioned residents. As one consultant said:
“In Hackney at any time on a 20-bed ward, there are one or two people we can’t send back to their flat because there is a residents’ petition.”
If those people were able to return home and access the full support services that they need, there would be fewer problems from residents. I will not go into some of the residents’ issues that I deal with, but many understand mental health issues—they are not negative or stereotypically against people with mental health problems. They simply say that such people need help and access to help. Without proper advocacy and support, many people cannot access that level of support, particularly single people and those who do not have family support, which is the case for many of my constituents.
There is a huge issue about the dearth of support available in police stations and courts in accessing health and social care, which is why the new clause is framed as it is. The system and, to a degree, the Bill focus on high-level risk, but ensuring that people at the lower end have access to the support services that I mentioned can prevent high-level risk in the first place. Advocacy can make a positive difference to people’s ability to access support.
The new clause deliberately does not go into the definitions of what an advocate may be. I have been an advocate for someone with a learning disability, but I recognise that there are different types of advocate. However, there is an issue about rights and choice. In the benefits system there is the role of an appointed person who can act for someone without mental capacity. As we have heard, a family member can often be a good advocate, but they can equally have problems in being an advocate. Mental health professionals have said to me that an experienced solicitor can often be the best advocate for a patient when dealing with the compulsion element of treatment involved in that narrow but important area of law. I have seen good social workers acting as advocate for their patients.
Should the advocate be independent? The point is that there should be a right to independent advocacy. I hope that my right hon. Friend the Minister will consider explaining and outlining that right to patients, as it is outlined in some of the new clauses. The Bill has previously included advocacy, so I take what she says in good heart. I recognise that new clause 1 is effectively the same as part of the draft Bill of 2004, which included the issue of advocacy.
I am not naive enough not to recognise that there are resource implications, and I hope that my right hon. Friend will comment on the work going on in the Department to consider the issue. I argue that although there may be such implications, of which none of us is unaware, there are also potential savings both social and financial. If we tackle the issue the right way around, we can save people from being bounced into admission and compulsory treatment or at least reduce the likelihood of it, particularly in relation to after-care.
 A pilot was conducted by Derman, a very good group in my constituency that works for the well-being of Turkish and Kurdish communities. It was set up 15 years ago by a visionary group of GPs, the health authority and members of the community, and it has recently conducted a highly successful pilot with the Latimer health centre, working with those with minor to moderate mental health problems. It has been proven to reduce admission to hospital and I recommend that my right hon. Friend examine it as part of the work that she says is going on in the Department of considering advocacy issues. Will she comment on whether the Government’s agenda of delivering race equality in mental health, which requires that everyone of a black and minority ethnic background have an advocate, is working? Has any analysis of it been done by the Department, and is there any likelihood of its being given greater resources?
When I talked to a number of groups in my constituency about advocacy, the range of views was interesting. The clear view was that advocates needed to have good professional training, and that was backed up by a long-standing consultant psychiatrist who said that sometimes the advocates are a bit too timid, and that he would welcome advocates being stronger in their views as it can make communication better and enhance the patient-psychiatrist relationship.
 The Making Decisions Alliance has made a number of submissions to the Committee, which Members have no doubt had a chance to examine. It calls for trained advocates and would like them to be separate from the best interests assessor. Training, support and the definition of an advocate are key, and I hope that the Minister will give some guidance about what the Department thinks might work. One mental health professional to whom I spoke said that advocates needed to be much more focused, and another said that they were very useful, but needed training and support. As I said, one said that stronger advocates would make communication a great deal better.
To return to the issue of resources, the borough of Hackney as a whole—not just my constituency—received only £40,000 for advocacy for those who are unbefriended under the 2005 Act. Of the top 20 users of the accident and emergency at my local hospital, Homerton hospital, 12 are known to the mental health trust. If we add to that the other costs to the system, let alone MPs’ surgery time, taken up in dealing with people who have problems but no one to help them to access services, we see that we can make a breakthrough by including advocacy in the Bill.
My right hon. Friend the Minister has said that the Government are committed to supporting and developing the role of advocates, and I have indicated to her that I see my new clause as probing, but it is important to consider advocacy beyond the point of legal compulsion. If we do not provide support for people after they are released into the community, as patients have said to me, it can be frightening for them to be out there on their own. Sometimes, however, being out there on their own is the right next step. It is not necessarily right to carry on compulsory treatment in the community, but sometimes that may be the case. I hope to speak on that element of the Bill later. It is important that someone is not left out there without knowing where to find support. Therefore, the right to independent advocates in that situation is particularly important.
I am glad that my right hon. Friend the Minister has acknowledged a role for advocacy post-detention. I am glad that she is looking into it, and I hope that in her responses, she can pick up on some of the brief points that I have made. Like my colleagues on this side, I trust that she is genuinely looking at the issue. I have many users and professionals in Hackney who will be listening closely to what she has to say next.

Tim Boswell: May I commend the remarks that have just been made by the hon. Member for Hackney, South and Shoreditch both in terms of looking at a more holistic approach to the needs of the people who may have mental health problems and also in the reasonable point that she made about early and appropriate intervention, or the maintenance of support after discharge, which is very important in reducing the overall cost of what may otherwise become a very expensive procedure? We have all welcomed the fact that the Minister is edging towards an advocacy service. I think that that is the main thrust of the provisions, but not the exclusive one.
I will just add an insight before I speak on the issue of advocacy. I feel that I have irked the Committee because I served on the Committee which considered the Mental Capacity Bill. Let me pick up the issue of the nearest relative and the interesting remarks made by the hon. Member for Stafford. As a professional—I am somebody who admires professionals from afar—he understands the importance of not getting into too much legal process, if that can be avoided. On reflection, it strikes me that after 25 years we are sitting in a world in which legal process comes first and the rest nowhere. We all know why that is, not least because of the very severe powers of detention that exist under the Mental Health Act 1983.
In developing the code of practice, I hope that the Minister will emphasise wherever possible alternative means of resolving disputes—mediation and otherwise. I believe that advocates could be active participants in that. One of the difficulties for people who have mental health problems and who may have other and multiple problems—they may not be very articulate and may not have mental capacity either—is to find somebody who can express their views and opinions so that they can have a civilised dialogue with the psychiatrist or other professional in order to map a sensible course of treatment or to challenge the treatment that is already being prescribed for them. That is a grown-up debate that we need to have. Frankly, some of the people involved and the carers and relatives themselves need support in articulating that role. In our constituency work, not necessarily linked with mental health, we are desperate to find out what constituents want in order to come up with some means of helping them. Therefore, the more that we can take the law out of the area—necessary as it is—and make it at least possible to have a grown-up discussion between articulate, well-trained, reasonable and engaged professionals, the better it will be.
On advocacy, I think that the innovation in the Mental Capacity Act 2005, which the Minister was engaged in, was an entirely sensible one. It came from the common sense of the Committee, as there is common sense in this Committee, that we should move on that matter. As hon. Members have already said, the exact nature of an advocate may change over time. The ones who are appropriate and the categories of people for whom they are appropriate, have got to be considered. It has been left rather late in the Bill, but I hope that it will proceed.
If I may simply put down a case for advocacy, I would put it in terms of the principles set out in clause 10. There are two of those in particular. The first is
“respect for patients’ past and present wishes and feelings,”
and the second is the need to minimise “restrictions on liberty.” We could have an endless and rather fruitless philosophical debate about whether provisions for advocacy under the 2005 Act bear on more serious cases—and in certain instances, more life-threatening or life-changing decisions—than those dealt with under mental health legislation. However, in both cases, wishes are extremely important and need articulation and support.
Thirdly, the distinctive feature of the mental health legislation is that the power of compulsory detention—the deprivation of liberty—hangs over people. That is as strong a case for advocacy, perhaps an even stronger one, than the one in relation to the 2005 Act.
We Committee members have a general role to play, which we have not always articulated. I sense that there will be debates in the next few years about the powers of the state and coercion on one hand and, on the other, the power of the individual and the need for the individual to have appropriate support. We need to try to create parity between those two needs. We will never decide what is needed at any one time and needs may change over time. However, it is clear that there is a need for somebody to stand up for a large population of distressed, disempowered, perhaps not very articulate and very troubled people. Such people need to be able to argue with officialdom in a way that they can understand, because they are familiar with the terms, to determine the best course for them, and their carers or relatives. That is self-evident and, in the long run, it will be for the good of the system and will not necessarily cost more.
The system would really be destroyed if the whole thing exploded into litigation because it was improperly handled or, perish the thought, some dramatic incident—an assault, murder or whatever—took place because the people in the system had not been adequately supported. That is a strong argument for a move in the direction that the Committee seeks through the new clauses and I do not think that the Minister has ruled it out. We look forward to her assurances.

Ann Winterton: I will be brief, as our debate has been slightly curtailed due to the Liberal Democrat’s choice of mental health as the subject for its Opposition day debate, which is rather unfortunate, given that we were going along very well. I should like to emphasise a couple of points for my hon. Friend the Member for Stafford and the hon. Member for Tiverton and Honiton. It is important to remember—it came up a couple of times—that the person who has lived with someone for five years will be the nearest relative.

David Kidney: Is my hon. Friend planning to amend the 1983 Act to say what she has just said? Currently, section 26(7) says that someone who is not a relative and has lived with a person for five years can become a relative in the list—but they are at the bottom, not at the top.

Ann Winterton: I gather that it will be fine. [Laughter.] I promise to write to my hon. Friend about that. That is the intention. It is also true to say that a person who has no relationship and intends to have no further relationship with the patient would be unsuitable to act or to continue to act as the patient’s nearest relative. This goes back to striking the right balance on a difficult issue. I assure my hon. Friend that I take on board his comments. I hope that he is reassured. However, I am prepared to look at the code of practice and see if there is anything that can strengthen it. In meetings that I have had with carers organisations about whether there could be too much movement in the opposite direction on this issue.
I am grateful for the contributions made by all the hon. Members who spoke on advocacy—particularly my hon. Friend the Member for Hackney, South and Shoreditch, who is a strong proponent of advocacy and who made a very good speech about the importance of making sure that we get it right. There were some helpful suggestions, and I hope that both she and my hon. Friend the Member for Stafford will return to their local organisations in the knowledge that their views have been reflected in the debate. The same is true of the views of Opposition Members—they have helped us to formulate the very best solution.
I ask that the Committee support clause 29 and reject the new clauses.

Question put and agreed to.

Clause 29 ordered to stand part of the Bill.
Further consideration adjourned.—[Claire Ward.]

Adjourned accordingly at twenty-six minutes past Six o’clock till Thursday 10 May at twenty-five minutes past Nine o’clock.